Playing God

Pursuant to California law judges must create child custody and visitation orders that serve the best interests of the children. Not what Mom wants, not what Dad wants, but what the children need. Family law attorneys spend a lot of time discussing the child custody and visitation process, and face challenges as parents try to formulate a co-parenting plan that does in fact serve the best interests of the children.

When a schedule cannot be reached by agreement, the case goes to court. Then the judge gets to decide. For the parents the decision seems pretty simple — hey judge give me what I want because I say this is what is best. I can assure you that the process the court goes through is much more complicated, particularly when faced with competing arguments that may both have merit. Want an example of how difficult judging family law cases can be, consider this case out of Santa Clara County.

Melissa and Steve got married. Melissa and Steve had two kids. In 2002 Melissa and Steve broke up and filed for divorce. Melissa got restraining orders against Steve and court orders giving her custody of the kids. In 2003 Melissa and Steve got back together, and pretty much forgot about the divorce action they had pending in court. In 2008 they broke up again, and the court proceedings fired up again. Read on to see what the poor kids were put through.

1. In March of 2008 the kids were again put in Melissa’s custody after she alleged that Steve had made death threats against her. These arguments prevailed over Steve’s argument that Melissa had made death threats against him, abused alcohol and drugs, and kept a loaded gun in her home where their children lived.

2. In August of 2008 the children were removed from Melissa and put into Steve’s custody after he convinced the court that Melissa had a serious drug problem, was neglecting the children and was alienating the children from Steve.

3. In 2010 Melissa went back to court and made the following arguments against Steve:

that Steve was a murderer, that she had seen him commit murder, that he had admitted to being a “hit-man,” and that he had threatened to kill her on several occasions. She claimed Steve belonged to the Hell’s Angels gang and was a drug dealer who had previously been incarcerated. In support of her contention that Steve was a dangerous man who posed a risk to the children, she provided documentation regarding the murder charges which had been brought against Steve, of which he was acquitted. Melissa also listed a litany of instances in which she characterized Steve’s conduct as abusive toward the children.

The court ruled against Melissa (allowing us to conclude that her character and parenting must have been even worse than Steve’s!).

4. In 2011 Steve gets shot and killed while attending the funeral of a fellow Hell’s Angel.

Technically the case of Melissa and Steve was about family law procedure when one of the parties dies in the middle of the case. In this case, with Steve’s death the children were returned to the custody of their mother. I mention this case to demonstrate how challenging child custody cases can be. How in the world can a court find any sort of best interest when children are in a situation like this? Please click here to read the unpublished Tausan opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.